Trigwell+Summary

//Trigwell// concerned a motor vehicle accident which occurred when a vehicle, driven along a main road, collided with two sheep. This caused the car, after striking the sheep to collide with another vehicle being driven in the opposite direction. The driver of the first car was killed. Passengers in the second car suffered serious injuries. They sued the insurer of the driver of the first car alleging negligence. The owners of the land adjoining the highway (who were the owners of the sheep) were joined as defendants. It was claimed that the presence of the sheep on the highway was the result of their negligence or that they were negligent for failing to fence the sheep, in order to prevent their straying onto the busy road. Applying the rule of the House of Lords in //Searle Wallbank// [|28] //,// the trial judge had held that the land owners were under no liability in negligence or nuisance for the escape of their animals onto the highway. The High Court, with Justice Murphy dissenting, rejected the plaintiff's appeal. The Court rebuffed the suggestion that the rule, fashioned by the English courts concerning liability for animals, was either unsuitable to Australian conditions (and so not received into our law) or, if it was, that it should be over-ruled as inappropriate to the circumstances of Australia and its different grazing conditions and needs. The submissions were given short shrift by Justice Mason [|29] : "It is then said that there was a radical change in the relevant conditions, a change brought about by the development of roads and highways, the growth of fast-moving motor traffic on a large scale and a substantial increase in the fencing of properties, the House of Lords should have held that the rule was no longer appropriate to modern conditions and that the ordinary principles of negligence should apply to the occupier of the highway. In short, it was argued that the House of Lords should have reviewed the existing law in conformity with the suggestions made by the Court of Appeal in //Hughes Williams.// I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what is thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a particular common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the Court may be justified in moulding the rule to meet the new circumstances. But there are very powerful reasons why the Court should be reluctant to engage in such an exercise. The Court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The Court's facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The Court does not, and cannot, carry out investigations or inquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the Court call for and examine submissions from groups or individuals who may be vitally interested in the making of changes of the law. In short, the Court cannot and does not engage in the wide-ranging inquiries and assessments that are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature." This attitude to the developments of the law of negligence, expressed in the passage in //Trigwell,// may be contrasted to the views expressed by Justice Mason in later cases, such as //Papatonakis Australian Telecommunications Commission// [|30] and //Bryan Maloney// [|31] . In the place of rules expressed in the English courts there was a new, heightened, sensitivity to the need to establish and express rules of negligence suitable for the rather different social conditions of Australia.